State v. Barone
| Decision Date | 23 December 1927 |
| Docket Number | 26,459 |
| Citation | 217 N.W. 104,173 Minn. 232 |
| Parties | STATE v. THOMAS BARONE |
| Court | Minnesota Supreme Court |
Defendant appealed from an order of the district court for Hennepin county, Leary, J. denying his motion for a new trial. Affirmed.
Conviction for robbery sustained.
The conviction of defendant for robbery in the first degree, in taking by force a shotgun, the property of a corporation from its servant during an attempt to rob the corporation of a large sum of money, is sustained by the evidence.
Remote evidence concerning weapons was admissible.
The evidence in relation to the weapons and shells found at the time of defendant's arrest was properly received, though remote; and it was legitimate argument for the county attorney to suggest the switching or changing of weapons between companions in crime.
No exception taken to use of word assigned as error.
No exception was taken to the use of an appellation for defendant's companions, at the time of the arrest, so as to predicate misconduct thereon.
William M. Nash and Chester L. Nichols, for appellant.
Clifford L. Hilton, Attorney General, Floyd B. Olson, County Attorney, and William G. Compton and Edward J. Goff, Assistant County Attorneys, for the state.
Defendant, convicted of robbery in the first degree, appeals from the order denying a new trial. A brief statement of the circumstances surrounding the commission of the crime will suffice for a presentation of the errors assigned.
Shortly before eight o'clock Sunday morning, November 22, 1925, defendant with two other men in an automobile attracted the attention of a police officer at the corner of Hennepin avenue and Eleventh street, Minneapolis. A minute or two later another officer on Harmon Place opposite the rear of the Minneapolis Street Railway Company's main office building, on Hennepin avenue near Eleventh street, saw three men, defendant being one of them, passing in toward the alley in rear of the building. About that time a truck with nearly $8,000, the receipts of the company's east side station of the day before, was on its way to the main office in charge of its employes Devlin and Lund, the latter driving. Inside the rear entrance, reached by three or fours steps to a platform, stood Mobeck, another employe, awaiting the truck, armed with a shotgun. Nelson, still another employe, was inside toward the front of the building. Mobeck had the rear door five or six inches ajar looking towards the outside. As he so stood a man pushed the door open and entered, Mobeck taking him for a friend of Nelson. Presently another man stepped in with some remark. By that time a third appeared upon the platform, the second one pulled a revolver on Mobeck, and directed the third to take the shotgun from him; and as this was being done defendant came on the platform. Mobeck was forced to turn to the wall; his cap was pulled down over his eyes; he was marched down to the basement with Nelson and both tied there. By that time the truck had arrived. Devlin went inside, and as Lund stepped down and toward the rear of the truck, which he had turned or backed toward the platform, a shot was fired; he saw Devlin come out and slump down at the door; the defendant, following right behind, at once fired at Lund, the bullet entering the shoulder. In the excitement the bandits fled. The inference from the record is that no property was taken except the shotgun; that Devlin died from his wound; and that defendant was indicted for his murder and acquitted. For the forcible taking of the shotgun, the property of the street car company, this conviction was had.
It is claimed that the evidence does not warrant conviction. The identification of defendant by Mobeck and Lund is positive. Both had good opportunity to observe him in broad daylight and within a distance of 12 feet. The two officers also identified him as one of the three men near the scene of the crime just prior thereto and, in all probability, on their way to commit it. We consider the evidence ample of defendant's participation in the crime. His alibi was not persuasive.
The chief complaint is that defendant did not have a fair trail. No fault could justly be urged against the prosecution until defendant's cross-examination was begun. He lived in St. Paul and owned property there. He was not arrested until July 13, 1926, in Superior, Wisconsin. The circumstances of his arrest and the evidence touching the weapons and ammunition in possession of alleged companions and himself furnish the basis for the claim of an unfair trial and give rise to the errors assigned upon the rulings of the court and upon alleged misconduct of the attorney in reference thereto. The testimony brought out as to the circumstances of the arrest are in short these:
On July 12, 1926, defendant with two companions in a Chrysler car were under observation by police officers in Superior. He was driving the same car alone the next day. He got out of it. An officer watched the car. Defendant went into a restaurant where he and one Smith were arrested by another officer. The ones with him the day before were McNeil and Welch,...
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